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[This is a post by Jonathan Rogers. Jon is a licensed attorney in California, with a focus on technology and entertainment law. You can reach him by email at jon@jonarogers.com or follow him on Twitter at @jonarogers.]

Plaintiff sued claiming breach of warranty and violations of certain state laws against consumer fraud stemming the sale of a motor coach. Plaintiff sought permission to search defendants’ hard drives to locate critical email which appeared to be missing from the original discovery production. Defendants contended that the email was not “reasonably accessible” under Federal Rule of Civil Procedure 26(b)(2)(B) and, therefore, they were under no obligation to produce it.

The court specified that the burden was on the party responding to discovery to identify whether there may be materials responsive to discovery requests that are stored on its system, but because of burden or cost are not reasonably accessible. However, that party cannot simply provide documents which are easily obtained and then assert that they have produced everything that is responsive to the request. If other relevant and responsive documents exist (or may exist), the party must say so and then say why those documents cannot or should not be produced.

Here, the defendants submitted only materials that were quickly accessible on employees’ desktops and made no effort to look further, even when they became aware that there was a possibility that there may be missing documents. A forensic expert asserted that he found the critical email in two separate locations on the computer network: on a local hard drive in an orphaned, but not deleted, storage file and also on a network hard drive that had been manually backed up. The expert concluded that a native Microsoft windows search of defendants’ computers would have uncovered the email and could be undertaken by an individual with no advanced computer knowledge.

The Court did not find the failure to produce the document to be a deliberate act by defendants, but that the document could have been found with minimal effort. It recognized that plaintiff (and the court) expended additional time and effort and incurred significant additional expenses searching for this document. Therefore, the court shifted half of the cost of the electronic discovery search to defendants.

Evan Brown is an attorney in Chicago helping businesses and individuals identify and manage issues dealing with technology development, copyright, trademarks, domain names, software licensing, service agreements and other matters involving the internet and new media.

Evan is a partner in the law firm of Much Shelist, P.C. He is an adjunct professor of law at Chicago-Kent College of Law, and is a Domain Name Panelist with the World Intellectual Property Organization (WIPO).